[A2k] Patent regimes and innovation in developing countries

[Federico Heinz]

Dear Silke,

regarding the message you received, I call big-time hipocritical bullshit.

Examples of the hipocrisy abound in the message. They start out with their
concern about poor third-world inventors whose innovations are misappropriated
by trend scouts, when it is precisely people from these countries who are
arguing against ever more patents. It goes on saying that there patents are no
big deal in the "green" field because most have expired, but then they come out
telling us that "their" innovations are at stake.

They also try to explote common misconceptions about patent law. For instance:

> > At one of our workshops, the representative of a major technology
> > company pointed out that in various structurally weak developing
> > countries there is no effective protection of "intellectual property".
> > Thus, ruthless trend scouts can spot innovative inventions in these
> > countries (e.g. in Afirca and make them available to companies
> > in industrialised and threshold countries without sharing the benefits
> > with the innovators. Therefore, we were called upon to advocate the
> > strengthening of patent regimes in developing countries (with financial
> > and juridical support by industrialised countries) in order to safeguard
> > a just compensation for these innovators or communities.

This completely misrepresents the way patents work. Patents are not enforced
in the country where the invention was made, not even necessarily in the country
where the product is manufactured, but in the country where the product is
*sold*. So a trend scout that finds something that is patented in country A,
can manufacture and sell products based on it in country B, regardless of how
strong and marciless the patent regime is in country A. So the real motivation
for, say, a US company to ask for stronger patents in Costa Rica is not (as can
be easily imagined) that they want to prevent "ruthless trend scouts" (that
even they should view themselves as such!) to market a Costa Rican invention in
the US without paying the inventor, but rather so that they can patent stuff in
Costa Rica and prevent Costa Ricans to compete.

> > Furthermore, the main obstacle for employing climate-friendly technologies
> > in developing countries are lack of investment capital and lack of know-how
> > regarding available technologies and their maintenance.

In other words, patents are no problem in developing countries because for
them to violate a patent they would have get their act together well enough to
produce anything in the first place, which they can't. It's like saying "a law
in Ecuador that forbids Ecuadorians to form an airline does not affect them
because they cannot afford a plane anyway".

> > Innovative climate protection technologies will be sought-after economic
> > goods in the future. What is your estimate regarding the status quo of
> > the international discussion on the strengthening of patent regimes in
> > developing countries - or, rather, mechanisms for safeguarding
> > compensation for innovations like "access and benefit sharing (ABS)"
> > discussed in the biodiversity debate?

My estimate is that, while a carefully calibrated patent regime *may* be useful
in *some* areas, and only as an industrial regulation that does not affect
individuals, the current patent system in most of the world, and particularly
in industrialized countries, is way over the top and must be scaled down
dramatically to keep it from doing more damage than it has already done.

> > As you know, the European Business Council for Sustainable Energy is
> > concerned with the question how eco-innovation, carbon-neutral and clean
> > energy technologies can gain a foothold in developing countries.
> > Therefore, for some time past we devote ourselves to initiating an Open
> > Source Hardware Initiative including a database for these technologies
> > which is to employ a model similar to the GNU (GPL) license.

I don't quite understand what this means, and how it is supposed to work. The
GPL is meant for software. In most cases, it doesn't even make sense for other
kinds of works that are also under copyright, such as works of fiction. How
do you translate the GPL to a field that is based on an entirely different
legal regime?

	Fede